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Hriday Govinda Sur Alias Hridgovinda Sur Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in82Ind.Cas.767
AppellantHriday Govinda Sur Alias Hridgovinda Sur
RespondentEmperor
Excerpt:
criminal procedure code (act xviii of 1928) section 589b - inspection note, record of--provision whether mandatory. - .....under the provisions of that section and also that he drew up a diagram and made an inspection note thereon. but he omitted to comply with the provisions of the second clause of this section and the note did not form part of the record of the case. this provision in the section is, in our opinion, mandatory and the failure to comply with this express direction of law was an illegality and not an irregularity which could be cured if we hold that there was no prejudice to the accused.2. we accordingly set aside the conviction and sentence passed on the petitioner and direct that the accused be re-tried according to law. the fine, if paid, will be refunded.
Judgment:

1. This Rule must be made absolute on the second of the two grounds, on which it was granted, namely, that the Trial Magistrate did not comply with the provisions of Section 539B. It appears that the Trying Magistrate inspected the place under the provisions of that section and also that he drew up a diagram and made an inspection note thereon. But he omitted to comply with the provisions of the second clause of this section and the note did not form part of the record of the case. This provision in the section is, in our opinion, mandatory and the failure to comply with this express direction of law was an illegality and not an irregularity which could be cured if we hold that there was no prejudice to the accused.

2. We accordingly set aside the conviction and sentence passed on the petitioner and direct that the accused be re-tried according to law. The fine, if paid, will be refunded.


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